Business of Editing: Liability Insurance — Nyet

One problem with working as an editor for large organizations is the contract that the organization wants you to sign. Some of the clauses have validity, others I wouldn’t sign regardless of the promised fee (see, e.g., The Business of Editing: Contracts — A Slippery Slope and Editors and Contracts: Editor Beware!). Recent discussions on various lists have focused on another requirement: the requirement to carry liability insurance (an errors and omissions policy) for such things as defamation and other events that have nothing to do with editing.

These contracts are boilerplate and prepared by attorneys who rarely have a clue about what an editor does for the express purpose of covering all of the possible arcane matters that can affect a publisher. As editors, we need to say “Nyet!” to these inapplicable clauses.

When I am faced with a demand for errors and omissions insurance, I ask the client to specify clearly and precisely against what risks I need to insure myself and against which the client will seek indemnification. I point out, for example, that defamation is not something an editor does; it is something a writer does. I make it a point to educate the client as to what precisely an editor does and does not do, after which I ask the client whether I am being hired as an editor or to perform some other function, one that has the potential to make me wish I were insured.

If the client expects me to undertake tasks that could make me liable for such things as would be covered by an errors and omissions policy, I know I need to decline the job — because it is not an editing job. Copyeditors don’t decide dosages or medicines, don’t determine whether a beam’s angle is correct, do not determine whether a street is a dead end or a highway on-ramp, or whether a named person is properly described.

I also ask the client whether the client truly believes that anyone would issue an errors and omissions insurance policy that protects against subjective decisions. What I mean is this: What insurance company will insure against my choosing to refer to people as “that” instead of “who” (as in “the patients that” vs. “the patients who”) or will reimburse the client for my use of “followup” (which the American Heritage Dictionary 5e says is OK, along with “follow-up”) as opposed to “follow-up” (which is the only form accepted by Merriam-Webster Collegiate 11e)?

“And what,” I ask clients, “if I use recur when it should be reoccur” (in case you are wondering, except, for example, in medicine, recur means to occur repeatedly whereas reoccur means to occur again once; in medicine, recur is used for both meanings)? “Do you really think an insurance company is going to pay a claim for my using one over the other?” What if I don’t use serial (Oxford) commas or if I do use them and the nonuse/use changes meaning (as in the infamous “eats, shoots and leaves”)?

Every editor knows that issues of language and grammar are rarely right-wrong matters; rather, they are matters of opinion in the sense that both sides of a language and grammar question can be, and often are, correct. How do you insure against making a decision that can be correct but just doesn’t tickle a client’s fancy? Perhaps spelling is in a separate category most of the time, but as followup versus follow-up illustrates, spelling is not in a separate category all of the time.

Clients are intelligent; what clients are not is omniscient. Consequently, when I am faced with a contract clause that requires me to obtain errors and omissions insurance, I endeavor to educate the client. First, I ascertain what the client thinks my job is. Then I educate the client as to what my job really is. If we cannot come to agreement on the parameters of the job I am being hired to do, I say thank you and walk away. To do otherwise is to bring me trouble.

A fundamental rule of editing is that client and editor must agree on the parameters of the job or the client needs to find someone else to do the job. Any editor who fails to grasp and embrace this rule is bound to have unsuccessful client relationships.

After I educate the client about what my job is, I undertake to educate the client as to why the insurance clause should be stricken. The usual response by a client is that if the clause has no relevance to my work, then we’ll leave it and ignore it. Alas, to agree to leave and ignore is to invite danger (for me) into the client-editor relationship. Meaningless clauses need to be struck, not ignored, because once a contract is signed, the unstruck clause is no longer meaningless. It may be that I cannot be held liable for defamatory text written by the author, but I still need to buy the insurance or be in breach of the contract. And do I really want to incur the expense of defending against a client’s attempt to make me liable for not catching that the dose should be 12 mg, not 120 mg?

If the client insists on retaining the clause, I send a revised estimate for the project. I take my original price and add to it a price for the purchase and administration (i.e., my administration) of the insurance. I submit that revised price to the client and explain that my other clients do not require such insurance and that it will be a special purchase just for this client, thus the additional charge. In addition, because the purpose of the insurance is not to protect me but to protect and indemnify the client, the only beneficiary of the insurance is the client, so it is only fair that the client pay the cost.

My experience has been that at this point the client is willing to strike the clause. But I am prepared for when the client simply says sign or go. I always will (and have occasionally had to do so) choose go and refuse to sign.

The only insurance I carry specifically for the benefit of clients is Worker’s Compensation. I maintain such a policy because it proves to the IRS that I am an independent contractor and clients who worry about proving that I am not an employee accept the certificate of insurance in lieu of all other items of proof, such as copies of tax returns or lists of clients, that they would otherwise require (and which I do not wish to divulge).

Part of being a businessperson is drawing lines that I will not permit clients to cross. Those lines are important. They form the basis of the relationship between me and my clients. One of my lines is that I will not sign contracts that contain terms that are not applicable to what I am hired to do, especially if those terms will cost me money.

What do you when faced for a demand for an errors and omissions insurance policy for your copyediting work?

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7 Comments

I do much the same as Rich does: I explain to the client that liability or E&O insurance does not apply to what I do and why, and to have the clause either struck or deleted from the contract. So far, that has worked with no problem in all instances but one, and I turned down that job for that reason.

Another argument against requiring such coverage for freelance editors is that we have no control over what is done to the work after it leaves our hands. Someone else could make a later revision that changes meaning in a way that could cause harm, especially in medical works, that we never see. We shouldn’t risk being held responsible for such events.

I have renter’s insurance with a rider to cover my work equipment and for someone getting hurt in the apartment – I think of a UPS or FedEx driver tripping over the doorstep or something. I’ll have to look into worker’s comp; I don’t think I need it to prove being an independent contractor – the couple of times I’ve been asked to prove that status, things like my business card and website have been sufficient – but it might be another useful layer of coverage in case of injury or illness.

I used to think that having my own business cards, bank account in the business name (mine is in Freelance Editorial Service’s name, not my personal name), and the type of rider that Ruth mentions to cover someone getting hurt while delivering to me would be sufficient, but in speaking to a friend who is a tax lawyer, I learned otherwise. It might be enough, but it may well not be enough for the IRS, especially if the bulk of one’s compensation comes from a single client. His advice was to pay the $350 a year and get Worker’s Compensation coverage. That is the type of business insurance that only a business has (unless, of course, you have, e.g., a maid or personal chef to whom you pay a salary). I took his advice, got the Worker’s Comp insurance, and gained the bonus that every client who asks for proof that I am a true independent contractor in the eyes of the IRS has been wholly satisfied by just that single certificate.

My accountant tells me that he has made the suggestion to some of his clients and that in one instance, during an audit by the IRS, the IRS agent asked about whether the person was an employee or an independent contractor. When shown the Worker’s Compensation certificate, that line of inquiry was dropped. So it worked at least in one instance.

This is pretty much standard for contracts in general – read them first (or have your lawyer read them – I usually do both) and if anything turns up you want to change, say so. It’s not a contract until all parties agree to the contents.

What does Worker’s Compensation have to do with the delivery man falling down your steps? He’s not my worker, he’s FedX’s or UPS’s (or whoever). He delivers to hundreds of homes and businesses a week, thousands a year — are we all expected to insure against him stumbling on our sidewalks? An employee’s injury on the job is the delivery company’s insurance problem, not mine.

I have no employees except myself. Does Worker’s Compensation cover me falling down my own steps?

Worker’s Comp insurance has nothing to do with the delivery person. That is a homeowner’s insurance problem. Homeowner’s are generally responsible for anyone injured on their property; it doesn’t matter whether they are an employee or not. It is possible that the rules are different where you live. You need to check with your insurance agent.

As for whether Worker’s Comp would cover you falling down your own steps, again you would have to check local laws. In my case, I can opt to cover myself with standard worker’s comp insurance. However, there are separate rules governing the self-employed.

Freelancers working with smaller clients, on projects with limited risks, don’t need errors and omissions insurance as much as their counterparts working with big clients. If you feel comfortable with the risks associated with your projects, operating without insurance may not be an issue. However, it’s a good idea to talk to an insurance broker about your options before making the decision one way or the other — because each freelancer operates a little differently and takes on different projects, it isn’t possible to give advice on insurance without personal knowledge of your business.